Tisdale & Warner (No 2)
[2023] FedCFamC1F 952
•7 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tisdale & Warner (No 2) [2023] FedCFamC1F 952
File number(s): CAC 78 of 2021 Judgment of: GILL J Date of judgment: 7 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Failure of state welfare agency to join proceedings despite multiple requests – Prospect both parents present an unacceptable risk of harm – Discontinuance by both parents to avoid the scrutiny of the court – Consequent ending of proceedings in this jurisdiction – Responsibility and ability of state welfare agency to take steps under state jurisdiction – Forwarding of material produced under subpoena and pursuant to s 69ZW to the state welfare agency Legislation: Family Law Act 1975 – Pt VII, Div 12A, ss 68L, 68LA
Federal Circuit and Family Court of Australia Act 2021 – s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – rr 1.04, 10.02
Cases cited: Bennett & Bennett (1991) FLC 92–191 Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 6-7 November 2023 Place: Wagga Wagga Counsel for the Applicant: Mr Luliano Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Ms Baker-Goldsmith Solicitor for the Respondent: Venus & Smart Solicitor for the Independent Children's Lawyer: Mr Clack, solicitor advocate, Legal Aid NSW ORDERS
CAC 78 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TISDALE
Applicant
AND: MS WARNER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
7 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Leave is granted to the father to discontinue his proceedings.
2.Leave is granted to the mother to discontinue her proceedings.
IT IS NOTED THAT
3.A consequence of the failure of the DCJ to intervene when so requested is that this leaves no active cause of action for this court to determine the best interests or appropriate protective arrangements for the children.
IT IS ORDERED THAT
4.The mother and father are each restrained from applying together for consent orders or for the registration of a parenting plan without first bringing this judgment to the attention of the court.
5.The ICL is discharged 30 days from today.
6.The ICL is at liberty to provide to the DCJ such material as may be identified by the ICL from material produced on subpoena or pursuant to s 69ZW orders as may assist the DCJ in its statutory obligations for the protection of these children.
7.I direct a registrar of the Federal Circuit and Family Court of Australia - Division 1 to cause this judgment to be given to the Secretary of the DCJ.
8.The father’s application is dismissed.
9.The mother’s application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
These parenting proceedings were before the court for contested final hearing. At 3:45 pm on the first day of the trial the applicant father made oral application for leave to discontinue the proceedings. That move was perhaps unremarkable given the nature of the evidence against the father. However, shortly thereafter, the respondent mother indicated both that she would also discontinue and that she and the father had reached agreement regarding the children’s parenting arrangements, an agreement that incorporated a parenting plan to allow, on terms, a graduated return of the children spending time with the father.
Neither party suggested that they would seek to have consent orders made.
It should be observed that these circumstances arose following the father and mother being granted time on their joint application to pursue an agreement in relation to parenting during the first day of the trial. That allowance of time came in the face of my observations that given the particular risk issues that were evident on the material, the parties should not anticipate that their agreement would be adopted and should anticipate that fact-finding would still be necessary in the context of the extant risk issues. Extant risk issues suggested that the children are not safe with either of their parents. Not to put too fine a point on it, the parties were on notice that the issue of unacceptable risk was live with respect to each of them.
The issue, or the first question rather, is how to deal with the oral leave application which I deferred until today. Rule 10.02(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the rules”) deals with the form of an application, it states that a party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.
While no relevant form been filed, that is not an issue of substance. Rule 10.02 importantly provides that:
(2) A notice of discontinuance may be filed:
(a) at least 14 days before the day fixed for the final hearing of the application; or
(b) with the leave of the court, at a later time.
That is, it is the right of a party to discontinue 14 days prior to the commencement of trial, however, after that time leave is required, which explains why both the father and mother sought such leave.
As was observed by counsel for the mother, the rules do not directly deal with the basis upon which leave is to be given or refused. It means that firstly recourse should be had to r 1.04 and examining the overarching purpose of the rules. Rule 1.04 provides as follows:
(1) The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The other aspects of overarching purpose do not arise at this point. It is convenient to note that the overarching purpose reflects what is contained at s 67 of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”). Central to both s 67 and rule 1.04 is that there be the just determination of disputes.
As these are parenting proceedings, I am also called to have regard to Div 12A of the Family Law Act 1975 (“the Act”). Division 12A sets out principles for conducting child related proceedings. Of those principles, principles 1 and 3 gain traction in the circumstances of this case.
Principle 1
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 3
The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Each of those matters is relevant to consideration in this case. They fall within material that has been filed within the court that points to the children potentially being subject to significant risk in each of the parties’ care. Not least amongst that material is material filed by the single expert.
Between, in particular, the material filed by the single expert and the affidavit prepared by the mother it can be seen that there are allegations by one of the children the subject of the proceedings that she has been sexually abused by the father. There are allegations by two of her older siblings, who are children of the mother’s from a previous relationship, that they too have suffered sexual abuse at the hands of the father. The mother alleges that the father had sexually assaulted her and has described the father behaving in a violent and abusive fashion.
It may be noted that the father has been convicted of an offence in relation to a child. It may also be observed that at present there is no extant relationship between the father and the children the subject of these proceedings, he having had no significant contact with the children since 2018.
There are allegations too of sexual, physical and psychological risk in the mother’s care. Allegations were recorded in particular by the single expert following a survey of material produced from various entities of neglect, malnourishment, hoarding, exposure to sexual risk, in particular for X.
It may be observed that X is a protected person by multiple apprehended violence orders, including one against the mother with whom she now lives. It can also be observed that X has suffered from suicidal ideation and self-harm.
These observations should not be thought of as a complete picture of the depth of the risk faced by the parties. It may also be observed that in preparation for the trial the Independent Children’s Lawyer (“the ICL”) indicated the impending tender of material to show that yet another person is alleged to have sexually assaulted X, in this instance a woman who has been subsequently permitted to stay within the home in which X and the mother reside. Again, as I have commented earlier, in all of this X demonstrates features of self-harm and a significant suicide risk.
Each of these matters points away from a grant of leave, particularly where it should be concluded that the purpose of the parties here is to exclude the court’s exercise of jurisdiction in relation to children about which the parties have always been in sharp dispute since the end of their relationship.
Despite submissions observing that the mother had sought in advance of the hearing to see what compromise might be reached given her fear of the proceedings, and her particular vulnerability, and despite the fact that the mother will inevitably be under the scrutiny, one would hope, of the Department of Communities and Justice (“the DCJ”), the only reasonable conclusion available is that the parties’ actions are to avoid the scrutiny of the court where there is strong reason to anticipate a conclusion that both parents present an unacceptable risk to the children.
I pause here observe that twice the DCJ has been invited to join those proceedings. Twice they have declined.
Their joinder would have meant that such an escape from scrutiny would have failed.
While all of these matters points away from a grant of leave, there are powerful considerations that render a grant of leave inevitable. Those considerations flow from a careful examination of the substance of what is before the court.
Before the court are proceedings initiated and continued in pursuit of parenting orders under Pt VII of the Act.
The application for leave to discontinue and the mirror application for leave places the matter in a position where there is no pursuit of a parenting order. There is no one seeking an adjustment of pre-existing rights, duties or obligations of parenthood. There was no one presenting to the court a willingness to undertake additional responsibilities, for example, the responsibilities of sole parental responsibility as opposed to joint parental responsibility. No one seeks to assume further rights, duties or obligations as a parent.
While there remains an ICL in the proceedings it cannot be thought that the ICL alone can do these things as the ICL cannot be considered a party once consideration is given to the duties and obligations as set out in s 68L and s 68LA of the Act and the explanation given in Bennett & Bennett (1991) FLC 92–191 of the role and duties of an ICL (then known as a separate representative).
Under these circumstances when no one pursues orders, and no one is prepared to receive an adjustment of parenting rights, duties or responsibilities upon them, there is left no effective choice other than to accede to the application for leave. However, it is not a leave that should be without consequences.
Under the circumstances of the discontinuance the parties ought not be permitted to seek consent orders or to register a parenting plan without first drawing the court’s attention to this judgment.
Given the outstanding risk issues it is also a judgment that should be provided to the Secretary of the Department, noting that the circumstances of this case will now become purely a matter for the state welfare agency operating under state law. While that agency has declined to intervene when requested, it has the statutory authority and ability to commence and pursue proceedings under state law for the protection of children, whereas this court is reliant upon the applications of a parent or a person concerned with the welfare and development of a child, neither of which will be before it any longer.
Here, the Department has a certain involvement with the family. Where they have not taken the opportunity to pursue the protection of the children here, the responsibility rests squarely upon their shoulders to take proper steps within the state’s sphere.
Further, the ending of these proceedings carry the consequence that the ICL should be discharged. That discharge should take place 30 days from now, with permission being given to the ICL to forward to the DCJ such material as has been produced for these proceedings and as has been collated and identified by the ICL as may assist the Department in the discharge of their duties towards those children.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 November 2023
0
0
3